NFIB Continues to Fight EPA Regulatory Land-Grab

On February 6, 2018 the EPA issued a two-year delay on enforcing the Waters of the U.S. (WOTUS) Rule until 2020. This does not guarantee that WOTUS is dead. It is still very much a live issue and NFIB will continue fighting to prevent it from being enacted. To read NFIB’s press release, click here.

President Trump issued an executive order on February 28, 2017, aimed at eliminating the controversial and economically damaging Waters of the United States (WOTUS) rule.

The executive order paves the way for the Environmental Protection Agency and the U.S. Army Corps of Engineers (the Agencies) to begin a new rulemaking process to dispose of, or considerably revise, the expansive rule finalized by the Agencies in June 2015.

What does the executive order do?

The new executive order, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, instructs the Agencies to review the rule in light of the president’s position that it is harmful to the economy.

Upon completion of this review, the Agencies will issue a proposed rule “rescinding or revising” the June 2015 rule.

The executive order also directs the Agencies to consider defining “waters of the United States” consistent with an opinion written by former Justice Antonin Scalia in a 2006 Supreme Court ruling regarding this issue.

This definition is likely to be far less expansive than the June 2015 rule and closer to defining these waters as those that are navigable.

Lastly, the executive order addresses current litigation regarding the June 2015 rule, in which NFIB sued the Agencies, by directing the Department of Justice to seek a pause in the litigation while the Agencies conduct their review.

How will this executive order help small businesses?

NFIB strongly opposed the WOTUS rule since its proposal in April 2014. We heard from countless members concerned about the rule’s burdensome overreach and harmful economic impacts.

The June 2015 rule failed to adequately consider the rule’s impact on small businesses, as required by law. This failure underpinned NFIB’s lawsuit against the Agencies.

NFIB will be actively engaged in the new regulatory process to ensure the rule is not overly burdensome and the Agencies adequately consider the rule’s clear impact on small businesses.